SEVENTH CIRCUIT REVIEW
Volume 6, Issue 1
Fall 2010
CONCLUDE TO EXCLUDE: THE EXCLUSIONARY
RULE’S ROLE IN CIVIL FORFEITURE
PROCEEDINGS
DANIEL W. KAMINSKI ∗
Cite as: Daniel W. Kaminski, Conclude to Exclude: The Exclusionary Rule’s Role in
Civil Forfeiture Proceedings, 6 SEVENTH CIRCUIT REV. 268 (2010), at
http://www.kentlaw.edu/7cr/v6-1/kaminski.pdf.
INTRODUCTION
Suppose that while you are travelling under suspicious
circumstances, the police stop and question you. Because you were not
expecting this, you exhibit a nervous demeanor that provides the
officers with reasonable suspicion, and they detain your luggage. The
officers do not have probable cause to search your bag, but they do so
anyway, only to discover that you are carrying $100,000 in cash.
Although the search clearly violates the Fourth Amendment, 1 certain
jurisdictions would permit the government to initiate a forfeiture
proceeding on the illegally seized currency. Some of these
jurisdictions, however, would not permit you to use the exclusionary
rule in this civil forfeiture proceeding. 2
∗ J.D. candidate, May 2012, Chicago-Kent College of Law, Illinois Institute of
Technology; B.A., Political Science and Legal Studies, 2008, University of
Wisconsin–Madison. I would like to thank Louis Hu for his invaluable help and
encouragement.
1
See U.S. CONST. amend. IV; Weeks v. United States, 232 U.S. 383, 390
(1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961).
2
See, e.g., People v. $241,600 U.S. Currency, 67 Cal. App. 4th 1100, 1113
(Cal. Ct. App. 1998) (holding that the “application of the exclusionary rule in civil
forfeiture actions is unnecessary”).
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The Framers’ purpose in drafting the Fourth Amendment was to
provide American citizens with an indefeasible right against
unreasonable search or seizure. 3 The judicially created exclusionary
rule seeks to protect that right by excluding from trial any evidence
obtained through an unconstitutional search or seizure. 4 Typically, the
exclusionary rule applies only in criminal trials. 5
However, the United States Supreme Court has held that, in
determining whether to invoke the exclusionary rule outside of the
criminal trial context, courts must balance the benefits of deterrence
against the costs to society. 6 Under the Supreme Court’s approach, the
benefits of deterrence may be low if the officers conducted the search
for criminal prosecution purposes. In that situation the exclusion of
evidence in a civil proceeding would be unlikely to provide significant
additional deterrence, since application of the exclusionary rule in the
criminal trial has already served to deter the officers from committing
future Fourth Amendment violations. 7 Moreover, the cost to society of
excluding probative evidence is relatively high. 8 As a result of these
relative costs and benefits, certain jurisdictions have declined to apply
the exclusionary rule to civil forfeiture proceedings. 9 Courts’ refusal to
apply the exclusionary rule 10 outside the criminal trial context appears
to weaken the fundamental right against unreasonable search and
seizure.
This Note will examine the evolution of the exclusionary rule and
its application to proceedings outside of the criminal trial context.
3
Boyd v. United States, 116 U.S. 616, 630 (1886), overruled on other grounds
by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).
4
Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on other
grounds by Mapp v. Ohio, 367 U.S. 643 (1961).
5
Mapp, 367 U.S. at 655.
6
United States v. Calandra, 414 U.S. 338, 349 (1974).
7
See id.
8
See, e.g., United States v. Janis, 428 U.S. 433, 449 (1976).
9
See, e.g., $241,600 U.S. Currency, 67 Cal. App. 4th at 1113.
10
See, e.g., Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998); INS
v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); Janis, 428 U.S. at 460; United
States v. Calandra, 414 U.S. 338, 354 (1974).
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First, the Note will focus on the Supreme Court’s development of the
exclusionary rule as a sanction used in criminal trials to deter law
enforcement officers from violating citizens’ Fourth Amendment
rights. 11 Second, the Note will examine the Supreme Court’s
application of the exclusionary rule to quasi-criminal forfeiture
proceedings in One 1958 Plymouth Sedan v. Pennsylvania. 12 Third,
the Note will examine the Supreme Court’s reluctance to extend the
exclusionary rule beyond the criminal trial context, focusing on the
cost-benefit analysis test applied by the Court. 13 Fourth, the Note will
examine the confusion that has developed in state and lower federal
courts with respect to Plymouth 14 and the subsequent cases in which
the Court applied the cost-benefit analysis and failed to invoke the
exclusionary rule outside of the criminal trial context. 15 Fifth, the Note
will examine United States v. Marrocco, 16 a recent Seventh Circuit
case that contained a pertinent concurring opinion by Judge
Easterbrook relating to the application of the exclusionary rule in civil
forfeiture proceedings. 17 Finally, the Note will investigate the
questioned validity of the Plymouth holding and its impact on modern
forfeiture proceedings. Because the viability of Plymouth is in
question, the Court’s cost-benefit analysis could determine whether to
invoke the exclusionary rule in the context of civil forfeiture. While
11
See Weeks, 232 U.S. at 398.
See 380 U.S. 693, 696 (1965).
13
See Calandra, 414 U.S. at 349.
14
See United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1063 (9th
Cir. 1994) superseded in part by statute, Civil Asset Forfeiture Reform Act of 2000,
Pub. L. No. 106-185, 114 Stat. 202. (holding that the Fourth Amendment
exclusionary rule is applied to forfeiture actions based on the precedent established
in Plymouth); People v. $241,600 U.S. Currency, 67 Cal. App. 4th 1100, 1113 (Cal.
Ct. App. 1998) (distinguishing the Plymouth precedent and holding that the Fourth
Amendment exclusionary rule does not apply to civil forfeiture proceedings using
the Court’s cost-benefit analysis).
15
See Scott, 524 U.S. at 369; Lopez-Mendoza, 468 U.S. at 1050; Janis, 428
U.S. at 460; Calandra, 414 U.S. at 354.
16
578 F.3d 627, 630 (7th Cir. 2009).
17
Id. at 642 (Easterbrook, J., concurring).
12
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the cost-benefit test has never applied the exclusionary rule beyond the
criminal trial context, the changing objectives of law enforcement
officers, and the changing statutory structure of civil forfeiture
statutes, suggests that the cost-benefit analysis should weigh in favor
of applying the exclusionary rule in civil forfeiture proceedings.
FRAMING THE ISSUE: THE EVOLUTION OF THE EXCLUSIONARY
RULE IN CRIMINAL PROCEEDINGS
I.
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized. 18
The premise underlying the Framers’ drafting of the Fourth
Amendment was that American citizens have indefeasible rights to
personal security, personal liberty, and private property, which may
only be restricted after the state has probable cause to suspect that a
citizen has committed a crime. 19 For years, however, the Court
searched for a remedy for American citizens who were subjected to
unreasonable searches or seizures. 20 In 1914, the Supreme Court
developed the judicial remedy known as the exclusionary rule to better
safeguard Americans’ Fourth Amendment rights. 21 In Weeks v. United
States, a United States Marshal entered Fremont Weeks’s home
18
U.S. CONST. amend. IV.
Boyd v. United States, 116 U.S. 616, 630 (1886), overruled on other
grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).
20
See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
21
Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on other
grounds by Mapp v. Ohio, 367 U.S. 643 (1961).
19
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without a warrant and seized books, letters, money, papers, and notes,
along with other property. 22 Weeks petitioned the court for the return
of his property, contending that the warrantless search of his home
violated the Fourth Amendment. 23 The district court denied Weeks’s
petition and admitted the illegally seized property into evidence. 24
Weeks appealed, and the Supreme Court granted certiorari. 25 On
appeal, the Supreme Court concluded:
If letters and private documents can thus be seized and held
and used in evidence against a citizen accused of an offense,
the protection of the [Fourth] Amendment, declaring his right
to be secure against such searches and seizures, is of no
value, and, so far as those thus placed are concerned, might as
well be stricken from the Constitution. 26
While “the efforts of the courts and their officials to bring the
guilty to punishment [was] praiseworthy,” such efforts “are not to be
aided by the sacrifice of those great principles established b[y] years
of endeavor and suffering which have resulted in their embodiment in
the fundamental law of the land.” 27 The Court also referenced its
decision in Adams v. New York, stating that “the [Fourth] Amendment
was intended to secure the citizen in person and property against
unlawful invasion of the sanctity of his home by officers of the law.” 28
By admitting illegally seized property into evidence, the Court “would
. . . affirm by judicial decision a manifest neglect, if not an open
defiance, of the prohibitions of the Constitution, intended for the
protection of the people against . . . unauthorized action.” 29 Because
22
Id. at 387.
Id. at 388.
24
Id.
25
Id. at 389.
26
Id. at 393.
27
Id.
28
Id. at 394 (citing Adams v. New York, 192 U.S. 585, 598 (1904)).
29
Id.
23
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the United States Marshal’s warrantless search was a direct violation
of the Fourth Amendment, the district court erred by admitting the
property into evidence. 30
Although the Supreme Court developed the exclusionary rule in
Weeks to serve as a judicial safeguard of citizens’ Fourth Amendment
rights, there was a limitation—the exclusionary rule was only
applicable against the federal government and its agencies. 31
In 1961, the Supreme Court overturned Weeks in part, when it
held in Mapp v. Ohio that the exclusionary rule also applied to state
criminal trials. 32 The Court concluded that, because the Fourth
Amendment’s right of privacy applied to the states through the Due
Process Clause of the Fourteenth Amendment, the same sanction of
exclusion used against the Federal Government also should apply to
the states. 33 The Court stated that “[t]he ignoble shortcut to conviction
left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest.” 34
The Court has never hesitated to enforce against the states the rights of
freedom of speech and the press or the right to not be convicted by use
of a coerced confession; why then would it hesitate to apply the right
to be protected against unconstitutional search and seizure? 35 Should
the Court allow the state to admit evidence that was unlawfully seized,
it would in effect encourage disobedience of the Federal Constitution,
which states are bound to uphold. 36 Thus, the Supreme Court
expanded the exclusionary rule to apply to both state and federal
criminal prosecutions. 37
30
Id. at 398.
Id.
32
Mapp v. Ohio, 367 U.S. 643, 660 (1961).
33
Id. at 655.
34
Id. at 660.
35
Id. at 656.
36
Id. at 657.
37
Id. at 660; see also Weeks v. United States, 232 U.S. 383, 398 (1914).
31
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II. THE EXCLUSIONARY RULE APPLIED TO QUASI-CRIMINAL
FORFEITURE PROCEEDINGS
Following its decision in Weeks, the Court had never applied the
exclusionary rule outside the criminal trial context. 38 In Plymouth, the
Supreme Court granted certiorari to determine whether the
exclusionary rule enunciated in Weeks 39 and extended to the states in
Mapp 40 was applicable to civil forfeiture proceedings. 41 In Plymouth,
two law enforcement officers observed that a car was weighed down
in the rear, and subsequently pulled over the vehicle. 42 The officers
identified themselves, questioned the owner, George McGonigle, and
searched the car, which revealed thirty-one cases of liquor that failed
to bear Pennsylvania tax seals. 43 The officers seized the liquor and car
and arrested McGonigle; however, the officers did not have a search or
arrest warrant. 44 Pennsylvania filed for forfeiture of the automobile
pursuant to state statute. 45 At the hearing, McGonigle sought dismissal
of the forfeiture petition on the ground that the forfeiture of the vehicle
depended on admission of evidence obtained in violation of the Fourth
Amendment. 46 The Pennsylvania trial court dismissed the forfeiture
petition. 47
38
See Weeks, 232 U.S. at 398.
See id.
40
See 367 U.S. at 660.
41
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696 (1965).
42
Id. at 694.
43
Id.
44
Id.
45
Id.; see 47 PA. STAT. ANN. § 6-601 (West 1964) (“No property rights shall
exist in any liquor, alcohol or malt or brewed beverage illegally manufactured or
possessed, or in any still, equipment, material, utensil, vehicle, boat, vessel, animals
or aircraft used in the illegal manufacture or illegal transportation of liquor, alcohol
or malt or brewed beverages, and the same shall be deemed contraband and
proceedings for its forfeiture to the Commonwealth may . . . be instituted . . .”).
46
Plymouth, 380 U.S. at 694–95.
47
Id. at 695.
39
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On appeal, the intermediate appellate court reversed and directed
that the automobile be forfeited. 48 The Pennsylvania Supreme Court,
affirming the order of the appellate court, concluded that “the
exclusionary rule . . . applies only to criminal prosecutions and is not
applicable in a forfeiture proceeding which the Pennsylvania court
deemed civil in nature.” 49
The United States Supreme Court granted certiorari to determine
whether the exclusionary rule applied to the forfeiture proceeding. 50
Initially, the Court examined its decision in Boyd v. United States,
which involved a forfeiture proceeding by the United States to forfeit
thirty-five cases of plate glass due to the offender’s failure to pay a
customs duty. 51 The Court quoted the Boyd opinion, which stated “that
proceedings instituted for the purpose of declaring the forfeiture of a
man’s property by reason of offenses committed by him, though they
may be civil in form, are in their nature criminal.” 52 The Court in Boyd
concluded that, because the statute required not only a fine or
imprisonment for the failure to pay the customs duty, but also that
such merchandise shall be forfeited, the proceeding was actually
criminal in nature. 53 Believing Boyd to be dispositive of the issue in
Plymouth, the Court concluded that the exclusionary rule applied
because the Pennsylvania forfeiture proceeding was “quasi-criminal”
in nature, since the forfeiture of the vehicle was necessitated by a
criminal conviction. 54 While the Pennsylvania proceeding was
technically a civil forfeiture proceeding, the Court concluded that in
substance and effect, it was a criminal proceeding since the forfeiture
statute that authorized the proceeding affixed penalties to criminal
acts. 55 Thus, “[i]t would be anomalous . . . to hold that in the criminal
48
Id.
Id.
50
Id. at 696.
51
Id. at 696–98 (citing Boyd v. United States, 116 U.S. 616, 633–34 (1886)).
52
Id. at 697 (quoting Boyd, 116 U.S. at 634).
53
Boyd, 116 U.S. at 633–34.
54
Plymouth, 380 U.S. at 700.
55
Id.
49
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proceeding the illegally seized evidence is excludable, while in the
forfeiture proceeding, requiring the determination that the criminal law
ha[d] been violated, the same evidence would be admissible.” 56 The
Court held that the exclusionary rule applied to the quasi-criminal
forfeiture proceeding. 57
An important caveat, however, is that the Court’s decision was
based on the character of the particular forfeiture proceeding at issue,
and thus, a distinction may be made when a civil forfeiture proceeding
is not necessitated by a criminal conviction. 58
III. THE EVOLUTION OF THE SUPREME COURT’S COST-BENEFIT
ANALYSIS TEST AND ITS IMPACT ON THE EXTENSION OF THE
EXCLUSIONARY RULE BEYOND CRIMINAL PROCEEDINGS
The primary purpose behind the judicially created exclusionary
rule is to safeguard American citizens’ Fourth Amendment rights
through deterrence of future unlawful police conduct. 59 Since
Plymouth, the Supreme Court has refused, in a number of cases, to
extend the exclusionary rule beyond the criminal trial context.60 The
cost-benefit analysis utilized by the Supreme Court has never applied
the exclusionary rule outside the context of criminal prosecution
because the substantial costs to society of excluding concededly
relevant evidence has always outweighed the deterrence benefits
achieved through application of the rule. 61
56
Id. at 701.
Id. at 702.
58
See id. at 696.
59
United States v. Calandra, 414 U.S. 338, 347 (1974).
60
See, e.g., United States v. Janis, 428 U.S. 433, 447 (1976).
61
See id. at 448.
57
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A. The Court’s Cost-Benefit Analysis Applied to Grand Jury
Proceedings
Following its decision in Plymouth, the Court developed a costbenefit analysis test in order to determine whether the application of
the exclusionary rule in situations outside the criminal trial context
would achieve the rule’s intended purpose, deterrence. 62 In United
States v. Calandra, the Court examined whether a witness summoned
to testify before a grand jury could answer questions based on
evidence obtained from an unlawful search and seizure. 63 Federal
agents obtained a search warrant, which authorized a search of John
Calandra’s place of business in connection with suspected illegal
gambling operations. 64 The officers failed to uncover any gambling
paraphernalia; however, the officers discovered a card that indicated
that Calandra had received periodic payments from Dr. Walter
Loveland. 65 The officers, who were aware that the U.S. Attorney’s
Office was investigating the possibility that Dr. Loveland had been a
victim of loan-sharking, seized the letter along with various other
items, which included books and records of the company. 66 Following
the seizure, the state of Ohio convened a special grand jury to
investigate the potential loan-sharking activities, which were a
violation of federal law. 67 The grand jury subpoenaed Calandra to
determine whether the seized evidence related to loan-sharking. 68
Calandra moved to suppress the evidence because the search exceeded
the scope of the warrant. 69 The United States District Court for the
Northern District of Ohio granted Calandra’s motion to suppress and
ruled that he need not answer any questions related to the seized
62
Calandra, 414 U.S. at 349.
Id. at 339.
64
Id. at 340.
65
Id.
66
Id. at 340–41.
67
Id. at 341.
68
Id.
69
Id.
63
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evidence. 70 The United States Court of Appeals for the Sixth Circuit,
affirming the decision, held that “the exclusionary rule may be
invoked by a witness before the grand jury to bar questioning based on
evidence obtained in an unlawful search and seizure.” 71
The Supreme Court granted certiorari. 72 Initially, the Court stated
that the purpose of the exclusionary rule “is to deter future unlawful
police conduct and thereby effectuate the guarantee of the Fourth
Amendment against unreasonable searches and seizures.” 73 In
deciding whether to apply the exclusionary rule to grand jury
proceedings, the Court “weigh[ed] the potential injury to the historic
role and functions of the grand jury against the potential benefits of the
rule as applied in this context.” 74 First, the Court determined that the
application of the exclusionary rule would interfere with grand jury
proceedings. 75 “Suppression hearings would halt the orderly process
of an investigation,” 76 which would “frustrate the public’s interest in
the fair and expeditious administration of the criminal laws.” 77
Next, the Court concluded that the deterrence benefits of applying
the exclusionary rule to grand jury proceedings would be fairly low. 78
Extending the exclusionary rule to grand jury proceedings “would
deter only police investigation consciously directed toward the
discovery of evidence solely for use in a grand jury investigation.” 79
The Court stated that “[w]hatever deterrence of police misconduct
may result from the exclusion of illegally seized evidence from
criminal trials, it is unrealistic to assume that application of the rule to
70
Id.
Id. at 342.
72
Id.
73
Id. at 347.
74
Id. at 349.
75
Id.
76
Id.
77
Id. at 350.
78
Id. at 351.
79
Id.
71
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grand jury proceedings would significantly further that goal.” 80
Applying the exclusionary rule to grand jury proceedings would
provide a minimal advancement of deterrence of police misconduct
because the officers are “consciously directed” toward discovering
evidence admissible in criminal trials. 81 Thus, the social costs to the
grand jury proceeding “outweigh[ed] the benefit of any possible
incremental deterrent effect” achieved through its application. 82 As a
result, the Court declined to extend the exclusionary rule to grand jury
proceedings. 83
B. The Court’s Cost-Benefit Analysis Applied to Civil Tax
Proceedings
Using the cost-benefit approach adopted in Calandra, the
Supreme Court also declined to extend the exclusionary rule to civil
tax proceedings. 84 In United States v. Janis, the Court examined
whether evidence illegally seized by a state criminal law enforcement
official was admissible in a civil tax proceeding brought by the United
States. 85 The Los Angeles police had obtained a defective search
warrant and, when executing the warrant, had uncovered evidence of
Max Janis’s book-making activity, including cash. 86 Based on the
evidence recovered, the police contacted the Internal Revenue Service
(IRS). 87 The IRS determined that Max Janis had not filed a federal
wagering tax return, which was required for book-making activities. 88
Upon examination of the evidence, the IRS made an assessment
80
Id.
Id. at 351–52.
82
Id. at 354.
83
Id.
84
United States v. Janis, 428 U.S. 433, 460 (1976).
85
Id.
86
Id. at 436.
87
Id.
88
Id. at 437.
81
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against Max Janis in excess of $89,026.00. 89 Based on the assessment,
the IRS brought a separate civil tax proceeding in federal district court,
seeking to levy the cash that the police had seized. 90 After Janis moved
to suppress the evidence seized and to quash the assessment, the
district court granted the motion because the evidence relied upon by
the IRS was obtained through the defective search warrant and, thus,
the assessment was based on illegally obtained evidence in violation of
the Fourth Amendment. 91
On appeal, the Court first noted the deterrent sanction imposed by
the exclusionary rule, which had already “punished” the Los Angeles
police by barring use of the evidence in state criminal court. 92 The
Court also reasoned that the illegally obtained evidence would be
inadmissible in federal criminal court, which meant that the “entire
criminal enforcement process” had been frustrated. 93 Since the federal
civil tax proceeding fell outside the “zone of primary interest” of the
Los Angeles police, 94 the exclusion of the evidence in a federal civil
proceeding was “unlikely to provide significant, much less substantial,
additional deterrence” because the use of the exclusionary rule in the
criminal trials had already deterred the Los Angeles police from
conducting illegal searches. 95
Second, the Court noted the substantial cost imposed on society
by excluding “what concededly is relevant evidence.” 96 In declining to
extend the exclusionary rule to civil tax proceedings, the Court
concluded that the “additional marginal deterrence” gained by
applying the exclusionary rule to the federal civil tax proceeding
89
Id.
Id.
91
Id. at 439 (internal quotation marks omitted).
92
Id. at 448.
93
Id.
94
Id. at 458.
95
Id.
96
Id. at 449.
90
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“surely does not outweigh the cost to society of extending the rule to
that situation.” 97
C. The Court’s Cost-Benefit Analysis Applied to Civil Deportation
Proceedings
Following Janis, the Supreme Court next declined to extend the
exclusionary rule to civil deportation proceedings. 98 In INS v. LopezMendoza, Immigration and Naturalization Service (INS) agents
arrested Lopez-Mendoza at his place of work without securing either a
search warrant to search the premises or an arrest warrant to place the
occupants into custody. 99 Following the arrest, the INS instituted
deportation proceedings against Lopez-Mendoza. 100 In a hearing held
before an immigration judge, Lopez-Mendoza moved to terminate the
deportation proceeding on grounds that his arrest had been illegal. 101
The immigration judge concluded that Lopez-Mendoza was deportable
because the legality of the arrest was irrelevant to the deportation
proceeding. 102 Lopez-Mendoza appealed, and “[t]he Court of Appeals
vacated the order of deportation and remanded for a determination
whether Lopez-Mendoza’s Fourth Amendment rights had been
violated when he was arrested.” 103
On appeal, the Supreme Court applied the same cost-benefit
analysis it had used in Janis. 104 Initially, the Court conceded that the
exclusionary rule’s deterrence value would likely be higher here than
in Janis because the INS agents who arrested Lopez-Mendoza were
the same agents who brought the deportation proceeding against
97
Id. at 453–54.
INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
99
Id. at 1035.
100
Id.
101
Id.
102
Id. at 1035–36.
103
Id. at 1036.
104
Id. at 1042; see also United States v. Janis, 428 U.S. 433, 453–54 (1976).
98
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him. 105 However, the Court pointed to three factors that reduced the
exclusionary rule’s deterrence value in civil deportation
proceedings. 106 First, the Court noted that deportation was still
possible regardless of whether the arrest was illegal, as deportation
was supported by evidence that was derived independently from the
arrest. 107 Second, the Court pointed out that INS agents arrested
almost 500 illegal aliens per year; however, over 97.5% agree to
voluntary deportation without a formal hearing. 108 Because of this,
“the arresting officer is most unlikely to shape his conduct in
anticipation of the exclusion of evidence at a formal deportation
hearing.” 109 Third, “the INS ha[d] its own comprehensive scheme for
deterring Fourth Amendment violations by its officers.” 110 The INS’s
scheme included regulations that “require[d] that no one be detained
without reasonable suspicion of illegal alienage, and that no one be
arrested unless there is an admission of illegal alienage or other strong
evidence thereof.” 111 Additionally, new INS officers “receive[d]
instruction and examination in Fourth Amendment law,” and the INS
punished any immigration officer who committed a Fourth
Amendment violation. 112 The Court concluded that the “INS’s
attention to Fourth Amendment interests [could] not guarantee that
constitutional violations w[ould] not occur, but it d[id] reduce the
likely deterrent value of the exclusionary rule.” 113
In weighing the costs, the Court concluded that the social costs of
applying the exclusionary rule in the context of deportation
proceedings would be very high, since the release from custody would
immediately permit the illegal alien to continue his unlawful presence
105
Lopez-Mendoza, 468 U.S. at 1042.
Id. at 1043–45.
107
Id. at 1043.
108
Id. at 1044.
109
Id.
110
Id.
111
Id. at 1045.
112
Id.
113
Id.
106
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in the United States. 114 In balancing the benefits of deterrence against
the costs to society, the Court declined to apply the exclusionary rule
in civil deportation hearings based on the high social costs of allowing
an immigrant to remain illegally inside the United States. 115
D. The Court’s Cost-Benefit Analysis Applied to ProbationRevocation Hearings
Following Lopez-Mendoza, the Court next declined to apply the
exclusionary rule to probation revocation hearings. 116 In Pennsylvania
Board of Probation and Parole v. Scott, parole officers entered Scott’s
residence—which was his mother’s home—without consent and
seized five firearms, a compound bow, and three arrows. 117 At the
parole violation hearing, Scott challenged the introduction of the
seized evidence as a violation of his Fourth Amendment rights. 118 The
Court concluded that the societal costs of excluding evidence “are
particularly high in the context of parole revocation hearings” 119
because “parolees . . . are more likely to commit future criminal
offenses than are average citizens.” 120 Moreover, the deterrence value
of excluding evidence illegally seized by officers “unaware that the
subject of [the] search is a parolee” would be marginal because the use
of the exclusionary rule in criminal trials already deterred these
officers from conducting illegal searches. 121 In that situation, an
officer would be searching for evidence admissible at a criminal trial
and, thus, would be deterred from obtaining evidence in violation of
the Fourth Amendment, which would be inadmissible at trial. 122
114
Id. at 1047.
Id. at 1050.
116
Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
117
Id. at 360.
118
Id.
119
Id. at 365.
120
Id.
121
Id. at 367.
122
Id.
115
283
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Additionally, the Court concluded, “even when the officer knows that
the subject of his search is a parolee, the officer will be deterred from
violating Fourth Amendment rights by the application of the
exclusionary rule to criminal trials.” 123 In balancing these interests, the
Court declined to extend the exclusionary rule to parole violation
hearings. 124
As indicated by the above cases, the Supreme Court has taken
dramatic steps from its initial decisions in Mapp, Weeks, and
Plymouth. Following those decisions, the Court has consistently
applied a balancing test—weighing the benefits of deterrence against
the costs to society—in deciding whether to invoke the exclusionary
rule. 125 In examining the benefits of deterrence, the Court has focused
on the fact that officers are generally deterred from conducting illegal
searches based on the application of the exclusionary rule in criminal
trials. 126 Thus, if the Court found that the officer or agency that
conducted the search was consciously directed towards criminal
prosecution, then the Court would conclude that the application of the
exclusionary rule would lead to only a marginal increase in
deterrence. 127 Moreover, the Court has focused heavily on the costs to
society in both excluding probative evidence from subsequent
proceedings and the exclusionary rule’s impact on the administrative
proceeding. 128 In balancing the costs and benefits, the Court’s
undivided trend has been to decline application of the exclusionary
rule outside the criminal trial context.129
123
Id. at 368.
Id. at 369.
125
See Scott, 524 U.S. at 369; INS v. Lopez-Mendoza, 468 U.S. 1032, 1050
(1984); United States v. Janis, 428 U.S. 433, 460 (1976); United States v. Calandra,
414 U.S. 338, 354 (1974).
126
Janis, 428 U.S. at 448.
127
See id. at 458.
128
Id. at 449; see also Mark J. Crandley, A Plymouth, A Parolee, and the
Police: The Case for the Exclusionary Rule in Civil Forfeiture after Pennsylvania
Board of Probation and Parole v. Scott, 65 ALB. L. REV. 147, 175 (2001).
129
See Scott, 524 U.S. at 369; Lopez-Mendoza, 468 U.S. at 1050; Janis, 428
U.S. at 460; Calandra, 414 U.S. at 354.
124
284
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IV. THE DIVIDED DECISIONS IN THE LOWER FEDERAL AND STATE
COURTS
The Supreme Court decisions since Mapp, which have
consistently declined to extend the exclusionary rule beyond the
criminal trial context, 130 stand in stark contrast to the Court’s decision
in Plymouth and have left state and lower federal courts questioning
whether to apply the exclusionary rule in civil forfeiture proceedings.
At the crux of this confusion is the Plymouth Court’s finding that civil
forfeiture proceedings are “quasi-criminal” in nature because, like a
criminal proceeding, the object is to penalize for the commission of an
offense against the law. 131
Because the Supreme Court’s decision in Plymouth stands in stark
contrast to its decisions in Janis, Lopez-Mendoza, and Scott, lower
state and federal courts have been given two options to determine
whether to apply the exclusionary rule to civil forfeiture proceedings:
(1) follow the precedent established in Plymouth; or (2) distinguish
Plymouth, treat the forfeiture as a civil proceeding, and weigh the
benefit of deterrence against the cost to society. As a result, lower
courts have continued to provide inconsistent rulings in deciding
whether the exclusionary rule is applicable to civil forfeiture
proceedings. 132
A. The Ninth Circuit and its Reaffirmation of Plymouth
The United States Court of Appeals for the Ninth Circuit is one of
the lower courts that, following Plymouth, have held that the
130
See Scott, 524 U.S. at 369; Lopez-Mendoza, 468 U.S. at 1050; Janis, 428
U.S. at 460; Calandra, 414 U.S. at 354.
131
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965).
132
United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1063 (9th Cir.
1994) superseded in part by statute, Civil Asset Forfeiture Reform Act of 2000, Pub.
L. No. 106-185, 114 Stat. 202.; People v. $241,600 U.S. Currency, 67 Cal. App. 4th
1100, 1113 (Cal. Ct. App. 1998).
285
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exclusionary rule applies in civil forfeiture proceedings. 133 For
example, in United States v. $191,910 in U.S. Currency, officers
became suspicious of Bruce Morgan after he placed his bags through
an airport security x-ray machine, and when searched, the officers
discovered the bags contained a large sum of money. 134 The district
court held that the search was illegal and granted Morgan’s motion for
summary judgment. 135 The Ninth Circuit affirmed the decision to
apply the exclusionary rule to the civil forfeiture proceeding. 136
B. California State Court: The Cost-Benefit Analysis Applied to Civil
Forfeiture Proceedings
In contrast with the Ninth Circuit, California is one state that,
following Plymouth, has held that the exclusionary rule is not
applicable to civil forfeiture proceedings. 137 In People v. $241,600 in
U.S. Currency, the California Court of Appeals distinguished its case
from Plymouth, stating that, “unlike in Plymouth, the forfeiture action
is an in rem civil proceeding which is not based on a provision
requiring the claimant to be found guilty of a criminal offense nor
imposing imprisonment as a penalty for a criminal act.” 138 After
concluding that the case was a purely civil action, the California court
applied the Janis test to determine whether the deterrence value of
applying the exclusionary rule to a civil forfeiture proceeding
133
See $191,910 in U.S. Currency, 16 F.3d at 1063. The Eleventh and Eighth
Circuits have also held this way. United States v. $291,828.00 in U.S. Currency, 536
F.3d 1234, 1237 (11th Cir. 2008) (holding that the Fourth Amendment exclusionary
rule applied to forfeiture actions); United States v. $7,850.00 in U.S. Currency, 7
F.3d 1355, 1357 (8th Cir. 1993) (holding that because forfeiture proceedings are
quasi-criminal in character, the exclusionary rule applies, barring evidence obtained
in violation of the Fourth Amendment).
134
16 F.3d at 1054.
135
Id. at 1056–57.
136
Id. at 1054.
137
See People v. $241,600 U.S. Currency, 67 Cal. App. 4th 1100, 1113 (Cal.
Ct. App. 1998).
138
Id. at 1111–12.
286
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outweighed the societal costs. 139 In concluding that the exclusionary
rule did not apply to civil forfeiture proceedings, the court stated that
“[t]he likelihood of achieving additional deterrence by excluding
illegally seized evidence in a civil forfeiture proceeding is not
sufficient to outweigh the societal costs imposed by the exclusion.” 140
The court reinforced its decision by stating that “[t]o date the United
States Supreme Court has rejected application of the exclusionary rule
to civil cases, and we decline to do so as well in this civil forfeiture
case.” 141
V. THE SEVENTH CIRCUIT AND THE EXCLUSIONARY RULE IN CIVIL
FORFEITURE PROCEEDINGS
To date, the United States Court of Appeals for the Seventh
Circuit has remained silent on whether the exclusionary rule would be
applied in civil forfeiture proceedings; however, in a recent concurring
opinion, Judge Easterbrook provided insight into how the court may
decide the issue. 142 In United States v. Marrocco, the Seventh Circuit
was presented with a civil forfeiture case that developed following an
illegal search of luggage. 143 An officer for the Amtrak police had
searched a computer database and discovered that Vincent Fallon had
paid cash for a one-way ticket less than seventy-two hours before
departure, which fit the profile of a drug courier. 144 Upon observing
Fallon enter his compartment, two officers approached and questioned
him as to whether he was carrying any weapons, drugs, or large sums
of money. 145 During the officers’ questioning, Fallon exhibited a
nervous demeanor, which provided the officers with reasonable
139
Id. at 1113.
Id. (citing United States v. Janis, 428 U.S. 433, 453–54 (1976)).
141
Id.
142
United States v. Marrocco, 578 F.3d 627, 642 (7th Cir. 2009) (Easterbrook,
J., concurring).
143
Id. at 629.
144
Id.
145
Id.
140
287
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suspicion to detain his luggage. 146 While Fallon denied the officers’
request to search the luggage, he told them that the luggage contained
$50,000. 147 The officers brought the luggage to the Amtrak police
office, used a pocketknife to open the luggage, and uncovered
numerous bundles of money. 148 Subsequent to the search, the officers
summoned a canine unit to conduct a sniff of the briefcase. 149 The
canine unit alerted to the briefcase, which served as an indication that
it contained drugs or money contaminated with drugs. 150 The officers
retained the briefcase and the funds, and the government subsequently
filed a complaint in federal district court seeking forfeiture of the
funds under the Controlled Substances Act. 151 Prior to trial, Fallon
filed a motion to suppress the seizure of the funds, and the district
court granted his motion. 152
On appeal, the Seventh Circuit reversed the decision of the district
court. 153 The court held that, under the inevitable discovery doctrine,
it was improper to suppress the funds. 154 The court noted that it is
proper to apply the inevitable discovery doctrine as long as the officers
show that they “ultimately or inevitably would have . . . discovered
[the challenged evidence] by lawful means.” 155 The court went on to
state that, to satisfy its burden under the inevitable discovery doctrine,
the government must first show that it would have obtained “an
independent, legal justification for conducting a search that would
have led to the discovery of the evidence.” 156 Second, “the
[g]overnment must demonstrate that it would have conducted a lawful
146
Id. at 630.
Id.
148
Id.
149
Id.
150
Id.
151
Id.; see 21 U.S.C. § 881(a)(6) (2006).
152
Marrocco, 578 F.3d at 630.
153
Id. at 642.
154
Id.
155
Id. at 637 (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)).
156
Id. at 637–38.
147
288
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search absent the challenged conduct.” 157 The court concluded that the
officers met the first burden because the result of the dog-sniff test,
which would have supported the issuance of a warrant, provided an
independent legal justification for searching the briefcase. 158 Because
the officers already knew that the briefcase contained money, the court
concluded that the “officers detained the briefcase in order to conduct
an investigation that would establish a link between the funds and
illegal activity.” 159 The officers also met the second requirement
because the “investigating officers undoubtedly would have followed
routine, established steps resulting in the issuance of a warrant.” 160
Based on the government’s satisfaction of the inevitable discovery
doctrine, the Seventh Circuit overturned the district court’s ruling to
suppress the illegally seized funds and remanded the case to determine
whether the funds were subject to forfeiture. 161
While he agreed with the majority’s application of the inevitable
discovery doctrine, Judge Easterbrook suggested in a concurring
opinion that the parties failed to argue whether the exclusionary rule
applied in civil forfeiture cases, which would have superseded the
doctrine of inevitable discovery. 162 In a detailed analysis relating to the
exclusionary rule in civil forfeiture proceedings, Judge Easterbrook
stated:
Suppressing the res in a civil proceeding, even though the
property is subject to forfeiture, would be like dismissing the
indictment in a criminal proceeding whenever the defendant
was arrested without probable cause. The Supreme Court has
been unwilling to use the exclusionary rule to “suppress” the
157
Id. at 638.
Id.
159
Id. at 639.
160
Id.
161
Id. at 642.
162
Id. (Easterbrook, J., concurring).
158
289
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body of an improperly arrested defendant. Why then would it
be sensible to suppress the res? 163
Judge Easterbrook also distinguished Marrocco from Plymouth,
stating that “[a]lthough [Plymouth] suppressed evidence in a
forfeiture, Janis stated that this was because that forfeiture was
intended as a criminal punishment. The forfeiture in our case is civil. It
is farther from a criminal prosecution than is a probation-revocation
proceeding.” 164 Judge Easterbrook’s reference to a probationrevocation proceeding suggested an attempt to align the Seventh
Circuit’s analysis with the analysis used in Scott. 165 Based on this
inference, it would appear that Judge Easterbrook would invoke the
cost-benefit test used in Janis, 166 which was applied in Scott, 167 to
determine whether the social costs of applying the exclusionary rule
outweigh the benefits of deterring officers in the context of civil
forfeiture proceedings. 168 While the court did not decide the scope of
this inquiry, it appears reasonable to suggest that the Seventh Circuit
would apply the balancing test established in Calandra to determine
whether to apply the exclusionary rule to civil forfeiture
proceedings. 169
163
Id. (citations omitted).
Id. (citations omitted).
165
See id.
166
See United States v. Janis, 428 U.S. 433, 460 (1976).
167
See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
168
See Marrocco, 578 F.3d at 642 (Easterbrook, J., concurring).
169
See id. at 643.
164
290
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VI. WITH THE VALIDITY OF PLYMOUTH IN QUESTION, WOULD THE
SUPREME COURT’S COST-BENEFIT ANALYSIS BAR THE EXCLUSIONARY
RULE IN CIVIL FORFEITURE PROCEEDINGS?
Since Plymouth, the Supreme Court has never applied the
exclusionary rule to bar evidence outside the criminal trial context. 170
While the Court has never directly overturned the holding in
Plymouth, its decisions following Plymouth, 171 coupled with the
changing statutory construction of state and federal forfeiture
statutes, 172 suggests that Plymouth’s validity may be in jeopardy and
that courts should analyze whether the exclusionary rule applies to
civil forfeiture using the Court’s current cost-benefit analysis. 173
A. Plymouth’s Questioned Validity
Federal courts that have applied the exclusionary rule to civil
forfeiture proceedings cite the precedent established in Plymouth to
validate their rulings. 174 The basis for their rulings revolves around the
Plymouth Court’s classification of a civil forfeiture proceeding as
“quasi-criminal.” 175
The evolution of state and federal forfeiture statutes has, however,
created a clear distinction between the “quasi-criminal” forfeiture
proceeding in Plymouth and current civil forfeiture proceedings. 176 In
170
See Scott, 524 U.S. at 369; INS v. Lopez-Mendoza, 468 U.S. 1032, 1050
(1984); United States v. Janis, 428 U.S. 433, 460 (1976); United States v. Calandra,
414 U.S. 338, 354 (1974).
171
See id.
172
See 21 U.S.C. § 881 (2006); see, e.g., 720 ILL. COMP. STAT. 646/85(g)(1)–
(3) (2006).
173
See Calandra, 414 U.S. at 354.
174
See e.g., United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1063
(9th Cir. 1994); United States v. $7,850.00 in U.S. Currency, 7 F.3d 1355, 1357 (8th
Cir. 1993).
175
See $191,910 in U.S. Currency, 16 F.3d at 1063; 7,850.00 in U.S. Currency,
7 F.3d at 1356.
176
See 21 U.S.C. § 881 (e)(1)(A); 720 ILL. COMP. STAT. 646/85(g)(1)–(3).
291
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Plymouth, McGonigle’s violation of a Pennsylvania liquor law that
permitted a fine also subjected his car to forfeiture. 177 There, the Court
classified the forfeiture proceeding as “quasi-criminal” because the
forfeiture was viewed as an additional penalty for McGonigle’s
commission of a crime. 178 Since the holding in Plymouth, forfeiture
statutes have evolved. 179 The federal forfeiture statute does not require
the individual possessing the property to be charged with a criminal
offense; rather, the government need only establish by a
preponderance of the evidence that the property seized was used in the
commission of a criminal offense. 180 For example, in Marrocco,
$7,850.00 in U.S. Currency, and $191,910.00 in U.S. Currency, the
government initiated a forfeiture proceeding absent the claimant’s
commission of a criminal offense. 181 Because of the statutory
differences in the forfeiture proceedings in Marrocoo, $7,850.00 in
U.S. Currency, and $191,910.00 in U.S. Currency, 182 the court’s
reliance on Plymouth as precedent is called into question when
determining whether the exclusionary rule applies to civil forfeiture
proceedings. 183
177
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 694 (1965).
Id. at 700.
179
See 18 U.S.C § 981(c)(3) (2006) (stating that if the Government's theory of
forfeiture is that the property was used to commit or facilitate the commission of a
criminal offense, or was involved in the commission of a criminal offense, the
Government shall establish that there was a substantial connection between the
property and the offense).
180
Id. § 981(c)(1) (stating that the burden of proof is on the Government to
establish, by a preponderance of the evidence, that the property is subject to
forfeiture).
181
United States v. Marrocco, 578 F.3d 627, 630 (7th Cir. 2009); United States
v. $191,910 in U.S. Currency, 16 F.3d 1051, 1056 (9th Cir. 1994) (the agents
instructed the claimant of the illegally seized funds that he was free to leave or
accompany the bags); United States v. $7,850.00 in U.S. Currency, 7 F.3d 1355,
1356 (8th Cir. 1993).
182
See $191,910.00 in U.S. Currency, 16 F.3d at 1056; $7,850.00 in U.S.
Currency, 7 F.3d at 1356.
183
See Plymouth, 380 U.S. at 702.
178
292
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Furthermore, the Plymouth Court, while applying the
exclusionary rule to forfeiture proceedings, narrowed its holding by
stating that it applied only “to forfeiture proceedings such as the one
involved here,” 184 which indicated that the Court’s holding may be
confined to the facts of that particular case.
Based on the statutory difference in forfeiture proceedings, 185 and
the notion that Plymouth is confined to its facts, 186 the viability of
Plymouth with respect to current forfeiture law is suspect, and a strong
argument can be formed that the federal courts of appeals’ reliance on
Plymouth is outdated and should be replaced with the Court’s current
cost-benefit analysis. 187
B. The Supreme Court’s Cost-Benefit Analysis Could Bar the
Exclusionary Rule in Civil Forfeiture Proceedings
Based on the analysis from cases that utilize the cost-benefit
analysis, a strong argument can be formed that the Court’s cost-benefit
approach could bar the exclusionary rule in civil forfeiture
proceedings. Similar to the forfeiture proceedings in Marrocco,
$7,850.00 in U.S. Currency, and $191,910.00 in U.S. Currency, the
forfeiture proceeding in $241,600.00 in U.S. Currency did not
necessitate the claimant being found guilty of a criminal act.188
Because the case was outside the scope of Plymouth, the California
court followed the precedent established in Calandra and applied the
cost-benefit analysis to the civil forfeiture proceeding. 189
184
Plymouth, 380 U.S. at 702.
See 18 U.S.C. § 981(c)(1), (c)(3) (2006).
186
See Plymouth, 380 U.S. at 702.
187
See Scott, 524 U.S. at 369; Lopez-Mendoza, 468 U.S. at 1050; Janis, 428
U.S. at 460; Calandra, 414 U.S. at 354.
188
See People v. $241,600 U.S. Currency, 67 Cal. App. 4th 1100, 1111–12
(Cal. Ct. App. 1998).
189
Id. at 1113.
185
293
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The California appellate court first weighed the deterrence value
of extending the exclusionary rule to civil forfeiture proceedings. 190
Because the exclusionary rule is already applied in criminal trials, the
court concluded that the additional benefit of deterrence from
excluding the evidence in the forfeiture proceeding would be marginal
because the officers would be “punished” by the exclusion of evidence
in state criminal trials. 191 On the cost side, the court looked to the
Janis holding, which stated that the societal costs are high 192 due to
the “inadmissibility of relevant, probative evidence.” 193 In balancing
both sides, the court declined to extend the exclusionary rule to civil
forfeiture proceedings because the cost of excluding probative
evidence outweighed any benefit of deterrence. 194
This conclusion is consistent with the Supreme Court’s holdings
since Plymouth, which have declined to extend the exclusionary rule
outside the criminal trial context,195 and are supported by the statutory
distinction between current forfeiture statutes as compared with the
statute relied upon in Plymouth. 196 Thus, under one reading of
Supreme Court precedent, application of the Court’s cost-benefit
analysis could bar use of the exclusionary rule in civil forfeiture
proceedings. 197
190
Id.
Id.
192
Id.
193
Id.; see also United States v. Janis, 428 U.S. 433, 449 (1976).
194
$241,600 U.S. Currency, 67 Cal. App. 4th at 1113.
195
See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998); INS v.
Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); United States v. Janis, 428 U.S. 433,
460 (1976); United States v. Calandra, 414 U.S. 338, 354 (1974).
196
See 18 U.S.C. § 981(c)(1), (c)(3) (2006); One 1958 Plymouth Sedan v.
Pennsylvania, 380 U.S. 693, 695 (1965).
197
See $241,600 U.S. Currency, 67 Cal. App. 4th at 1113.
191
294
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VII. REGARDLESS OF SUPREME COURT PRECEDENT, THE EXCLUSIONARY
RULE SHOULD APPLY TO CIVIL FORFEITURE PROCEEDINGS
Since Plymouth, the Supreme Court’s resistance in applying the
exclusionary rule to civil proceedings is well-noted. 198 Additionally,
modern forfeiture statutes, which have evolved since Plymouth, have
drawn into question whether the conclusion that civil forfeiture is a
“quasi-criminal” proceeding is still viable today. 199 Moreover, the
Plymouth Court noted that its decision was narrow and applied only to
“the forfeiture proceeding such as the one involved [in that case].” 200
Notwithstanding the viability of Plymouth or the precedent in
subsequent Supreme Court decisions, this Note argues in the following
sections that the exclusionary rule should be applied in civil forfeiture
proceedings.
A. Quasi-Criminal Forfeiture Proceeding Versus Civil Forfeiture
Proceeding: A Distinction that Should Not Make a Difference
Recall that the purpose of the exclusionary rule is to deter future
unlawful police conduct. 201 As evidenced above, the first step that a
court would take in holding that the exclusionary rule does not extend
to civil forfeiture proceedings is to distinguish Plymouth’s “quasicriminal” classification. 202 Logically, it would follow that, by
distinguishing Plymouth, a court would analyze its case using the
Supreme Court’s cost-benefit analysis, which has never applied the
exclusionary rule to civil proceedings. 203 Does the distinction between
a “quasi-criminal” proceeding and a civil proceeding impact whether
adequate deterrence would be achieved? In inferring that the
exclusionary rule might be barred from civil forfeiture proceedings,
198
See, e.g., Janis, 428 U.S. at 460.
See $241,600 U.S. Currency, 67 Cal. App. 4th at 1111–12.
200
Plymouth, 380 U.S. at 702.
201
United States v. Calandra, 414 U.S. 338, 347 (1974).
202
See $241,600 U.S. Currency, 67 Cal. App. 4th at 1111–12.
203
See Janis, 428 U.S. at 458.
199
295
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Judge Easterbrook stated, “The forfeiture in our case is civil. It is
farther from a criminal prosecution than is a probation-revocation
proceeding.” 204 Because the exclusionary rule was barred in
probation-revocation proceedings, it would follow that the rule would
be barred in a civil forfeiture hearing. 205 The correlation between the
“proceeding” and application of the exclusionary rule is furthered in
the Janis holding, which stated, “[i]n the complex and turbulent
history of the rule, the Court never has applied it to exclude evidence
from a civil proceeding.” 206 This idea was also prevalent in
$241,600.00 in U.S. Currency, which first made sure to distinguish
itself from Plymouth and qualify its proceeding as civil. 207 However, a
court that focuses on the nature of the proceeding when determining
whether to invoke the exclusionary rule may overlook the primary
goal of the exclusionary rule—i.e., deterrence. 208
When examining the deterrence benefits in proceedings outside
the criminal trial context the Supreme Court has focused on the fact
that the exclusionary rule already bars evidence in criminal
proceedings. 209 Because the exclusionary rule is applied to criminal
proceedings, courts have concluded that the additional benefit of
deterrence from excluding the evidence outside the criminal trial
context would be marginal because the officers are already “punished”
by the exclusion of evidence in criminal proceedings. 210 While this
narrow approach fails to determine the actual motive of the officer
who conducted the seizure, it also fails to adapt to overall changes in
204
United States v. Marrocco, 578 F.3d 627, 642 (7th Cir. 2009) (Easterbrook,
J., concurring).
205
See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
206
Janis, 428 U.S. at 447.
207
See $241,600 U.S. Currency, 67 Cal. App. 4th at 1111–12.
208
Christine L. Andreoli, Admissibility of Illegally Seized Evidence in
Subsequent Civil Proceedings: Focusing on Motive to Determine Deterrence, 51
FORDHAM L. REV. 1019, 1042 (1983).
209
See Scott, 524 U.S. at 369; INS v. Lopez-Mendoza, 468 U.S. 1032, 1050
(1984); Janis, 428 U.S. at 460; United States v. Calandra, 414 U.S. 338, 354 (1974).
210
See e.g., $241,600 U.S. Currency, 67 Cal. App. 4th at 1113.
296
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modern law enforcement objectives. 211 There is no question that, when
law enforcement officers act on the spur of the moment to seize
evidence and stop crime, “[t]heir fear of evidentiary suppression in the
criminal trial will have as much deterrent effect as can be
expected”; 212 however, in situations where the officer has first
identified the person he is investigating, the deterrence value in that
specific instance may increase. 213
In the changing climate of police investigations, the
characterization of the proceeding becomes irrelevant, as a court’s
overall goal should be to determine whether adequate deterrence has
been achieved, which can be fulfilled only by evaluating the changing
objectives of law enforcement agencies that conducted the illegal
search. 214
B. The Changing Objective of Law Enforcement Agencies
Civil forfeiture has evolved as a main objective in modern law
enforcement. 215 The first step developed in the Calandra Court’s costbenefit test is to determine whether an officer who conducted the
illegal search would be further deterred if the exclusionary rule were
applied and the illegally seized evidence were suppressed. 216
Traditionally, the Court has concluded that law enforcement officers
are consciously directed towards criminal prosecution, which limits
any additional deterrence that would be achieved through suppression
of evidence in a subsequent proceeding. 217 However, modern law
211
Crandley, supra note 128, at 160.
Scott, 524 U.S. at 373 (Souter, J., dissenting).
213
Id.
214
Tirado v. Comm’r of Internal Revenue, 689 F.2d 307, 310 (2d Cir. 1982)
(holding that determining when the likelihood of substantial deterrence justifies
excluding evidence requires some assessment of the motives of the officials who
seized the challenged evidence).
215
Crandley, supra note 128, at 178.
216
United States v. Calandra, 414 U.S. 338, 352 (1974).
217
See Scott, 524 U.S. at 369; INS v. Lopez-Mendoza, 468 U.S. 1032, 1050
(1984); United States v. Janis, 428 U.S. 433, 458 (1976); Calandra, 414 U.S. at 352.
212
297
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enforcement objectives have evolved, which would result in
substantial deterrence if the exclusionary rule were applied to civil
forfeiture proceedings. 218
1.
Modern legislation has provided a changing objective for law
enforcement officers in forfeiture cases.
Congressional legislation, which for over twenty years “has
expanded the reach of forfeiture laws,” provides evidence to support
the changing focus of modern law enforcement agencies. 219 In 1970,
Congress passed 21 U.S.C. § 881, which authorized “the government
to seize and forfeit drugs, drug manufacturing and storage equipment,
and conveyances used to transport drugs.” 220 The statute’s purpose
was to inhibit the spread of drugs in a way that criminal prosecution
could not—“by striking at its economic roots.” 221 Criminal
prosecution may send a drug dealer to jail; however, the operation of
the criminal organization would most likely continue under the
guidance of a subordinate who would likely take over his position. 222
By attacking the means of production, forfeiture could stop the drug
trafficking business for good. 223 Since the initial statute was passed,
Congress has consistently expanded the reach of the statute to include
proceeds traceable to drug transactions. 224 Congressional
encouragement and advancement of the forfeiture statute provides
evidence that modern law enforcement objectives have evolved to
focus on civil forfeiture proceedings. 225
218
Crandley, supra note 128, at 166–67.
Id. at 166.
220
Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden
Economic Agenda, 65 U. CHI. L. REV. 35, 44 (1998); see 21 U.S.C. § 881 (2006).
221
Id.
222
Id.
223
Id.
224
Id. at 45.
225
Crandley, supra note 128, at 166.
219
298
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2.
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Fall 2010
Changing governmental policy reflects the changing objectives of
modern law enforcement agencies.
The Asset Forfeiture Policy Manual of the United States
Department of Justice also suggests that law enforcement objectives
have shifted towards forfeiture. 226 The guidelines produced by the
Department of Justice for asset forfeiture illustrate the complex
planning that is involved in forfeiture proceedings. 227 Detailed in the
2007 “pre-seizure planning” section is the equity threshold necessary
to pursue a forfeiture. 228 The plan requires that the minimum amount
of cash to be pursued exceed $5,000. 229 Furthermore, vehicles must
exceed $5,000 in value, vessels must exceed $10,000, and aircraft
must exceed $10,000. 230 Additionally, the plan notes that prior to the
seizure, the agency must determine whether any liens or mortgages are
involved in the property being pursued so that officers may determine
whether the agency should go forward with the seizure. 231 The
specificity illustrated in the “pre-seizing” section illustrates the
conscious direction of law enforcement officers in targeting
forfeiture. 232
3.
Civil proceedings provide law enforcement agencies with an
easier and more efficient tool for crime prevention.
Civil forfeiture also provides law enforcement with an efficient
and effective weapon in the war against drugs. 233 The changing nature
of criminal activity has led law enforcement agencies to use civil
226
U.S. DEP’T OF JUSTICE, ASSET FORFEITURE POLICY MANUAL 1 (2007),
available at http://www.justice.gov/criminal/foia/docs/policy07.pdf.
227
Id. at 5.
228
Id.
229
Id. at 6.
230
Id.
231
U.S. DEP’T OF JUSTICE, supra note 226, at 8.
232
See id.
233
Crandley, supra note 128, at 161.
299
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remedies to achieve criminal justice goals. 234 Generally, “civil
remedies are easier to use, more efficient, and less costly than criminal
prosecutions.” 235
Procedural advantages have also led civil forfeiture to become a
popular remedy among law enforcement agencies. 236 The two most
important advantages stem from the legal fiction derived from
forfeiture cases, that “the property is guilty and on trial.” 237 First,
forfeiture may be pursued even when a lack of sufficient evidence
prevents a criminal conviction. 238 While criminal prosecutions require
an offender to be found guilty beyond a reasonable doubt, in a civil
forfeiture proceeding, the government only needs to establish that the
property is subject to forfeiture by a preponderance of the evidence in
order to effectuate forfeiture. 239 Second, forfeiture proceedings lack
constitutional safeguards that are present in criminal prosecution
hearings. 240 A claimant, challenging the government’s seizure of
property, is not afforded the right to an attorney, does not receive a
presumption of innocence, and is unable to use the hearsay
objection. 241 These procedural advantages suggest that the objectives
of law enforcement officers have been modified to attack drug
trafficking in an easier and more efficient manner. 242
234
Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve
Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law
Distinction, 42 HASTINGS L.J. 1325, 1333 (1991).
235
Id. at 1345.
236
Blumenson & Nilsen, supra note 220, at 46.
237
Id. at 47.
238
Id.
239
See 18 U.S.C. § 981(c)(1) (2006) (stating that the burden of proof is on the
Government to establish, by a preponderance of the evidence, that the property is
subject to forfeiture).
240
Blumenson & Nilsen, supra note 220, at 46.
241
Id. at 48.
242
Cheh, supra note 234, at 1345.
300
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4.
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The Financial Incentive of Forfeiture and Its Impact on Law
Enforcement Objectives
Law enforcement’s evolving focus on civil forfeiture is also
supported by the financial incentive achieved through its use.243 In
1984, Congress enacted two amendments that expanded the power of
forfeiture. 244 The bill’s first amendment provided federal law
enforcement agencies the right to retain and use proceeds from asset
forfeitures. 245 The second amendment created the federal “equitable
sharing” program, which provided state and local agencies the greater
share of proceeds even when federal agents were involved in the
arrest. 246 The equitable sharing program included a “federal adoption”
procedure, which allowed state agencies that turned seized assets over
to the Justice Department for federal forfeiture to receive back up to
80% of the assets’ value. 247 These amendments provide state and
federal law enforcement officers with “a financial motivation to
expand forfeiture.” 248 This incentive also appears in state statutes,
which allow law enforcement agencies to retain certain percentages of
assets obtained. 249 As a result, the financial incentive provided to law
243
Blumenson & Nilsen, supra note 220, at 50.
Id.
245
See 21 U.S.C. § 881(e)(1)(A) (2006) (stating that forfeited property may be
transferred to any federal agency or to any state or local law enforcement agency that
participated directly in the seizure or forfeiture of the property); see also Blumenson
& Nilsen, supra note 220, at 50.
246
Blumenson & Nilsen, supra note 220, at 51.
247
Id.
248
Crandley, supra note 128, at 170.
249
See, e.g., 720 ILL. COMP. STAT. 646/85 (g)(1)–(3) (stating that 65% shall be
distributed to the metropolitan enforcement group or local, municipal, county, or
State law enforcement agency or agencies that conducted or participated in the
investigation resulting in the forfeiture; 12.5% shall be distributed to the Office of
the State’s Attorney of the county in which the prosecution resulting in the forfeiture
was instituted; 12.5% shall be distributed to the Office of the State’s Attorney’s
Appellate Prosecutor; and 10% shall be retained by the Department of State Police
for expenses related to the administration and sale of seized and forfeited property).
244
301
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enforcement agencies further suggests that modern policing objectives
have evolved to focus on civil forfeiture proceedings.
5.
Civil forfeiture statistics support the changing objective of law
enforcement agencies.
Law enforcement’s increasing focus on forfeiture, which is shown
by the Department of Justice’s policy manual, 250 Congressional
legislation, 251 the efficiency of civil proceedings, 252 and financial
incentives, 253 is supported in the Justice Department’s Asset Forfeiture
Fund, which reported $1.4 billion forfeited during the 2009 fiscal
year. 254 In comparison, in 1994, the Justice Department took just under
$550 million. 255 These statistics suggest that, contrary to the assertion
that criminal law enforcement officers are focused only on criminal
prosecution, civil forfeiture has, in fact, evolved to be a significant
mechanism to hinder illegal conduct. 256 Moreover, unlike tax
assessments, 257 parole revocations, 258 or deportation hearings, 259
which clearly fall outside the conscious direction of law enforcement
officers, the statistics above support the idea that civil forfeiture is
“ingrained into mainstream police practices.” 260 The congressional
advancement of forfeiture statutes, the policy underlined in the Justice
250
See U.S. DEP’T OF JUSTICE, supra note 226, at 5.
See 21 U.S.C. § 881 (2006).
252
See Blumenson & Nilsen, supra note 220, at 46; Cheh, supra note 234, at
1333; Crandley, supra note 128, at 161.
253
See 21 U.S.C. § 881(e)(1)(A) (2006); 720 ILL. COMP. STAT. 646/85 (g)(1)–
(3).
254
U.S. Dep’t of Justice, Total Net Deposits to the Fund by State of Deposit—
as of September 30, 2009, ASSET FORFEITURE PROGRAM (last visited Nov. 17, 2010),
http://www.justice.gov/jmd/afp/02fundreport/2009affr/report1.htm.
255
Crandley, supra note 128, at 162.
256
Id.
257
See United States v. Janis, 428 U.S. 433, 448 (1976).
258
See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
259
See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
260
Crandley, supra note 128, at 159–60.
251
302
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Department’s manual, the efficiency of civil forfeiture procedures, and
financial incentives, all serve as indicators that modern law
enforcement officers have expanded their objective focus to civil
forfeiture. 261
C. Deterrence and the Changing Law Enforcement Objective
Modern legislation, 262 agency policy, 263 efficiency of civil
proceedings, 264 and greater financial incentive 265 provide sufficient
evidence to conclude that modern law enforcement officers have
expanded their objective focus to forfeiture. 266 Historically, criminal
conviction was the primary objective in crime prevention; however,
today, forfeiture enables law enforcement agencies to fight crime and
raise money at the same time. 267 Moreover, pre-seizure planning adds
validity to the dissent in Scott, which suggested that a law enforcement
officer will have “first identified the person he has his eye on,” which
in turn may increase the level of deterrence achieved through
application of the exclusionary rule in civil forfeiture proceedings. 268
Because of this, courts must adapt their perspective in analyzing the
deterrence of officers, in order to gauge the significant benefit of
deterrence that would be achieved by applying the exclusionary rule in
civil forfeiture proceedings. 269
261
Id. at 161; see also Blumenson & Nilsen, supra note 220, at 46; Cheh,
supra note 234, at 1333.
262
See 21 U.S.C. § 881 (2006).
263
See U.S. DEP’T OF JUSTICE, supra note 226, at 5.
264
Blumenson & Nilsen, supra note 220, at 46; Cheh, supra note 234, at 1333;
Crandley, supra note 128, at 161.
265
Blumenson & Nilsen, supra note 220, at 50.
266
Crandley, supra note 128, at 160.
267
Blumenson & Nilsen, supra note 220, at 55.
268
See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 373 (1998) (Souter, J.,
dissenting).
269
Crandley, supra note 128, at 175.
303
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D. Societal Costs in Applying the Exclusionary Rule to Civil
Forfeiture
The societal costs are low in the context of civil forfeiture. The
second step in the Calandra analysis is to determine the societal costs
of applying the exclusionary rule to civil forfeiture proceedings. 270
Evidence that could be linked to criminal activity “concededly is
relevant evidence,” the exclusion of which would impose a significant
cost to society. 271 However, the procedural advantages related to civil
forfeiture help to alleviate these costs. 272 First, notwithstanding the
exclusion of illegally obtained evidence, the government may establish
underlying criminal activity that would lead to forfeiture by
introducing additional evidence from an independent source, untainted
by the illegal search. 273 Additionally, the government may introduce
evidence obtained illegally as long as it can illustrate that the
inevitable discovery doctrine would apply. 274 Procedural advantages
also diminish the costs of excluding the relevant evidence.275 The
government’s burden of proof, which is beyond a reasonable doubt in
criminal trials, is lowered to only a preponderance of the evidence in a
forfeiture proceeding. 276 Furthermore, constitutional safeguards that
are present in criminal trials are absent from civil forfeiture
270
United States v. Calandra, 414 U.S. 338, 352 (1974).
United States v. Janis, 428 U.S. 433, 449 (1976).
272
Crandley, supra note 128, at 176.
273
United States v. Price, 558 F.3d 270, 281 (3d Cir. 2009) (citing Murray v.
United States, 487 U.S. 533, 537 (1988)) (“The independent source doctrine serves
as an exception to the exclusionary rule and permits the introduction of ‘evidence
initially discovered during, or as a consequence of, an unlawful search, but later
obtained independently from activities untainted by the initial illegality.’”).
274
United States v. Marrocco, 578 F.3d 627, 637 (7th Cir. 2009) (citing Nix v.
Williams, 467 U.S. 431, 444 (1984)) (stating that application of the inevitable
discovery doctrine is proper so long as the officers show that they “ultimately or
inevitably would have . . . discovered [the challenged evidence] by lawful means”).
275
Crandley, supra note 128, at 176.
276
Blumenson & Nilsen, supra note 220, at 48.
271
304
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proceedings. 277 Finally, even if an illegal search occurs, in the
instances where the seized item is contraband, the government is not
required to return the property because of its inherent illegality. 278
Thus, the costs of barring relevant evidence from civil forfeiture
proceedings are minimized due to the procedural advantages given to
civil forfeiture and the government’s ability to introduce evidence to
support forfeiture through the doctrines of inevitable discovery and
independent source. 279
E. The Benefits of Deterrence Outweigh the Costs to Society in the
Context of Civil Forfeiture Proceedings
As illustrated above, modern police objectives have evolved to
focus on forfeiture. 280 Because of this increased focus, the level of
deterrence that would be achieved in extending the exclusionary rule
to civil forfeiture would be substantial. 281 Additionally, while costs
relative to society would arise from excluding relevant evidence from
trial, procedural mechanisms, 282 the inevitable discovery doctrine, 283
and the independent source doctrine 284 help to prevent these costs
from harming the administrative function of civil forfeiture
proceedings. 285 Thus, in weighing the benefits of deterrence against
the costs to society, the benefits that accrue due to law enforcement’s
changing objectives outweigh the social costs, and, as a result, even if
277
Id. (stating there is no presumption of innocence, no right to an attorney,
and no hearsay objection afforded to claimants in civil forfeiture cases).
278
Crandley, supra note 128, at 178.
279
See Marrocco, 578 F.3d at 637; United States v. Price, 558 F.3d 270, 281
(3d Cir. 2009); see also Crandley, supra note 128, at 176.
280
U.S. DEP’T OF JUSTICE, supra note 226, at 6; see also Blumenson & Nilsen,
supra note 220, at 46; Cheh, supra note 234, at 1333; Crandley, supra note 128, at
161.
281
Crandley, supra note 128, at 161.
282
See Blumenson & Nilsen, supra note 220, at 50.
283
See Marrocco, 578 F.3d at 637.
284
See Price, 558 F.3d at 281 (3d Cir. 2009).
285
See United States v. Calandra, 414 U.S. 338, 349 (1974).
305
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the Plymouth precedent were overturned, the exclusionary rule should
be applied in the context of civil forfeiture proceedings.
CONCLUSION
The uncertain viability of Plymouth, coupled with Supreme Court
precedent following Plymouth, has brought into question the
applicability of the exclusionary rule in civil forfeiture proceedings.
Because the Court has consistently focused on criminal prosecution as
the sole objective of law enforcement, the Court, using a cost-benefit
analysis, has refused to extend the exclusionary rule to civil
proceedings. 286 However, the changing objectives of law enforcement
agencies have led forfeiture to become “ingrained into mainstream
police practices.” 287 Thus, “[t]he unique role of civil forfeiture in
modern policing makes it sui generis in the level of deterrence the
exclusionary rule will produce” and would not be outweighed by the
minimal costs associated with the relatively government-friendly
proceeding. 288
However, application of the exclusionary rule in civil forfeiture
proceedings would create new questions, which up to this point have
been left unanswered. Property seized by law enforcement agencies is
classified into two different categories: 1) contraband per se and 2)
derivative contraband. 289 Contraband per se is forfeitable without
regard to the right of the owner due to its inherent illegality. 290 In
contrast, forfeiture of derivative contraband requires the government
to establish by a preponderance of the evidence that the property was
used, or intended to be used, to facilitate the commission of a crime. 291
286
See United States v. Janis, 428 U.S. 433, 458 (1976).
Crandley, supra note 128, at 160.
288
Id.
289
Lalit K. Loomba, Note, The Innocent Owner Defense to Real Property
Forfeiture Under the Comprehensive Crime Control Act of 1984, 58 FORDHAM L.
REV. 471, 475 (1989).
290
Id. at 475.
291
Id. at 475–76.
287
306
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Money is not contraband per se, and thus, the government must
establish by a preponderance of the evidence that it was used, or
intended to be used, to facilitate a violation of the law. 292
In a situation where money that was illegally seized is the sole
evidence offered by the government, and neither the inevitable
discovery doctrine 293 nor the independent source doctrine 294 applies, it
would be impossible to establish that the money was in fact derivative
contraband, due to the application of the exclusionary rule. However,
even in the absence of evidence, a strong presumption that the money
is illegal can be supported due to the thorough planning efforts that
predate the seizure. 295 While this presumption cannot be used as
evidence, courts will be left with the question of what to do with the
money.
Certainly, public policy dictates that the agency that conducted the
illegal search should not benefit from it. Releasing money, however,
that carries a presumption that it is associated with illegal activity
would also be contrary to public policy. When the exclusionary rule is
applied in a criminal setting, the only person receiving the benefit of
the rule is the person whose rights were violated; however, in the
context of civil forfeiture, the release of the property would not only
benefit the carrier of the funds, but potentially the entire criminal
organization that is supported by the funds. Thus, the application of
the exclusionary rule in the context of civil forfeiture proceedings
would leave courts with a new dilemma—what should be done with
the money, which is a question that will be left for another day.
292
City of Chicago v. United States, 372 F. Supp. 178, 181 (N.D. Ill. 1974).
See United States v. Marrocco, 578 F.3d 627, 637 (7th Cir. 2009) (citing
Nix v. Williams, 467 U.S. 431, 444 (1984)) (stating that the inevitable discovery is
proper so long as the officers show that they “ultimately or inevitably would have . .
. discovered [the challenged evidence] by lawful means”).
294
See United States v. Price, 558 F.3d 270, 281 (3d Cir. 2009) (citing Murray
v. United States, 487 U.S. 533, 537 (1988)) (“The independent source doctrine
serves as an exception to the exclusionary rule and permits the introduction of
‘evidence initially discovered during, or as a consequence of, an unlawful search, but
later obtained independently from activities untainted by the initial illegality.’”).
295
U.S. DEP’T OF JUSTICE, supra note 226, at 5.
293
307